CEDH · PRESS;GENERAL;ENG — 2 février 2006

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .s40F41F73 { margin-top:0pt; margin-bottom:0pt; text-align:right } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sBB9EE52A { font-family:Arial } .s7ED160F0 { text-decoration:none } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s6B505E72 { margin:0pt; padding-left:0pt } .sD711EC90 { margin-left:31.52pt; padding-left:7.48pt; font-family:serif } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sADADF4A7 { font-family:Arial; text-decoration:underline } .s9F8EB0C0 { width:18.63pt; display:inline-block } .s9E97F54A { width:85.05pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } EUROPEAN COURT OF HUMAN RIGHTS   56 2.2.2006   Press release issued by the Registrar   CHAMBER JUDGMENT IOVCHEV v. BULGARIA   The European Court of Human Rights has today notified in writing its Chamber judgment [1] in the case of Iovchev v. Bulgaria (application no. 41211/98).   The Court held unanimously that there had been: two violations of Article 5 § 3 (right to liberty and security) of the European Convention on Human Rights; a violation of Article 6 § 1 (right to a fair trial within a reasonable time) of the Convention; a violation of Article 3 (prohibition of inhuman or degrading treatment) concerning the applicant’s detention conditions; and, a violation of Article 13 (right to an effective remedy).   Under Article 41 (just satisfaction), the Court awarded the applicant 6,000   euros   (EUR) in respect of non-pecuniary damage and EUR   3,000 for costs and expenses. (The judgment is available only in English.)   1.     Principal facts   The applicant, Georgi Spasov Iovchev, is a Bulgarian national who was born in 1965 and lives in Plovdiv (Bulgaria).   Mr Iovchev was suspected of misappropriating 792,000 Swiss francs from a company of which he was the chair of the board of directors and, on 20 June 1996, was charged in his absence (while living in the United States of America) with misappropriation of funds in large amounts, an offence punishable by 10 to 30 years’ imprisonment. He returned to Bulgaria and was immediately arrested at Sofia Airport on 25 October 1996. The investigator in charge of the case decided that the applicant should be placed in pre ‑ trial detention, a decision approved by the prosecutor in charge of the case.   The applicant was detained from 25 October 1996 to 6 May 1997 in the Podiv Regional Investigation Service detention facility. His requests for release prior to 6 May 1997 were all rejected.   He was held in a 20 m2 cell, usually with three others, with no beds, no window and a bucket for a toilet. Detainees had to sleep on the cement floor, which they covered with dirty blankets. The cell was lit by a single electric bulb. During the winter the temperature in the cell was approximately 10 ‑ 12 degrees Celsius.   Detainees were only allowed out of the cell for two to three minutes twice a day to go to the toilet or when they had visitors, were taken for questioning, or were taken to court. The applicant claimed that there were periods of 30 or 40 days when he was not allowed to take a bath.   In proceedings brought by another detainee who was in the same detention facility at the same time as the applicant Plovdiv Court of Appeal found that the conditions were “a manifestation of cruel, inhuman and humiliating treatment, contrary to the absolute prohibition of Article 3 of the Convention”.   On 3 May 1997 the applicant was also charged with abuse of office, a lesser offence punishable by up to five years’ imprisonment.   On 27 July 2001 the criminal proceedings against the applicant were stayed and, on 17 September 2003, Plovdiv Regional Prosecutor’s Office dropped the misappropriation of funds charges. Proceedings concerning the charge of abuse of office appear still to be pending.   Shortly after his release, on 22 July 1997, the applicant filed an action against the National Investigation Service under the State Responsibility for Damage Act, claiming that the conditions of his detention constituted inhuman and degrading treatment. On 2 November 2000 Plovdiv District Court dismissed the applicant’s action and refused compensation on the ground that he had failed to adduce sufficient proof that he had suffered non ‑ pecuniary damage as a result of his detention conditions. He appealed unsuccessfully.   2.     Procedure and composition of the Court   The application was lodged with the European Commission on Human Rights on 25 June 1997 and transmitted to the European Court of Human Rights on 1 November 1998. On 18 November 2004 the Court declared the application partly admissible.   Judgment was given by a Chamber of seven judges, composed as follows:   Christos Rozakis (Greek), President , Peer Lorenzen (Danish), Nina Vajić (Croatian), Snejana Botoucharova (Bulgarian), Anatoli Kovler (Russian), Elisabeth Steiner (Austrian), Khanlar Hajiyev (Azerbaijani), judges , and also Søren Nielsen , Section Registrar .     3.     Summary of the judgment [2]   Complaints The applicant maintained that, after his arrest, he was not brought before a judge or a judicial officer, that his pre ‑ trial detention was unjustified and excessively lengthy, and that the criminal proceedings against him exceeded a reasonable time. He also complained about the conditions of his detention and the lack of effective remedies concerning those conditions. He relied on Articles 6 § 1, 5 § 3, 3 and 13 of the Convention.   Decision of the Court   Article 5 § 3   Right to be brought before a judge Concerning the system of detention pending trial as it existed in Bulgaria until 1 January 2000, the Court recalled that in previous judgments it had found that neither investigators nor prosecutors were “officer[s] authorised by law to exercise judicial power” within the meaning of Article 5 § 3.   The applicant’s detention was ordered by an investigator and confirmed by a prosecutor without either of them having seen the applicant. Neither the investigator, nor the prosecutor were sufficiently independent and impartial for the purposes of Article 5 § 3, in view of the practical role they played in the investigation and the prosecution and the prosecutor’s potential participation as a party to the criminal proceedings.   There had therefore been a violation of Article 5 § 3 concerning the applicant’s right to be brought before a judge or other officer authorised by law to exercise judicial power.   Right to trial within a reasonable time Finding that the authorities failed to convincingly demonstrate the need for the applicant’s remand in custody for a period of six months and 12 days, the Court held that there had been a further violation of Article 5 § 3 concerning the applicant’s right to trial within a reasonable time or release pending trial.   Article 6 § 1   Having regard to the criteria established in its case ‑ law, the Court found that the length of the criminal proceedings against the applicant (at least six years and 11 months, throughout which time the proceedings remained at the preliminary investigation stage) failed to satisfy the reasonable time requirement and that there had therefore been a violation of Article 6 § 1.   Article 3   While taking account of the information provided by the Bulgarian Government about the alleged improvement of the conditions in all Bulgarian Investigation Service detention facilities in 1999, the Court reiterated that its task was to assess the actual circumstances of the applicant’s case.   Since the applicant was detained within the Plovdiv Regional Investigation Service between 25   October 1996 and 6 May 1997, the findings of the Council of Europe’s Committee for the Prevention of Torture (CPT) in its 1995 and 1999 reports provided a reliable basis for the assessment of the conditions in which he was imprisoned. The Court also took note of the CPT’s general findings about the conditions in all Investigation Service detention facilities, about the conditions in the Plovdiv Regional Investigation Service detention facility during a later period, and its conclusion that those conditions could be described as inhuman and degrading. It also took account of Plovdiv Court of Appeal’s view that the conditions in the facility where the applicant was detained were “a manifestation of cruel, inhuman and humiliating treatment, contrary to the absolute prohibition of ... Article 3 of the Convention”.   The Court observed that the applicant spent more than six months in a 20 m2 cell occupied by between two and four detainees and that the material and sanitary conditions in the cell were apparently very unsatisfactory.   The fact that the applicant was confined in this cell for almost 24 hours a day for more than six months, without exposure to natural light and without any possibility for physical and other out ‑ of ‑ cell activities, must have caused him intense suffering. The Court was of the view that, in the absence of compelling security considerations, there was no justification for subjecting the applicant to such limitations. Furthermore, subjecting a detainee to the embarrassment of having to relieve himself in a bucket in the presence of his cellmates and of being present while the same bucket was being used by them could not be deemed warranted, except in specific situations where allowing visits to the sanitary facilities would pose concrete and serious security risks. However, no such risks were invoked by the Government as grounds for the limitation on the daily visits to the toilet by the detainees during the relevant period.   While there was no indication that the detention conditions or regime were intended to degrade or humiliate the applicant, or that they had a specific impact on his physical or mental health, there was little doubt that certain aspects of the stringent regime could be seen as humiliating.   The Court did not underestimate the financial difficulties cited by the Government. However, many of the shortcomings could have been remedied even in the absence of considerable financial means. In any event, the lack of resources could not in principle justify detention conditions so poor as to reach the threshold of severity contrary to Article 3.   Having regard to the cumulative effects of the unjustifiably stringent regime to which the applicant was subjected and the material conditions in which he was kept, the Court concluded that the distress and hardship he endured exceeded the unavoidable level of suffering inherent in detention and the resulting anguish went beyond the threshold of severity under Article 3. There had therefore been a violation of Article 3.   Article 13   The Court noted that the domestic courts’ decision to dismiss his action and refuse compensation was apparently based on the underlying proposition that non ‑ pecuniary damage such as pain, stress, frustration and anxiety was only provable through formal, external evidence (in the applicant’s case, witness testimony, which the applicant had failed to adduce). They did not consider that the evidence establishing the poor conditions in the detention facility – which were amply proven – could also serve, together with the applicant’s statements, as proof that he had endured mental anguish and suffering on account of those conditions. Bearing in mind the subject ‑ matter of the applicant’s claim, their approach seemed unduly formalistic, allowing a large number of cases, such as the applicant’s, where the facts did not lend themselves to such objective, extrinsic proof – that is, most cases in which poor conditions of detention caused emotional distress, but did not result in physical injury or illness – to be dismissed as unsubstantiated, resulting in a lack of compensation for conditions of detention which violated Article 3. As a result, the remedy under the State Responsibility for Damage Act lost much of its remedial efficacy.   Noting in addition that the courts took more than five years and four months to deal with the applicant’s action, the Court found that the length of the proceedings was another factor which rendered them ineffective.   Concluding that the applicant did not have an effective remedy for his complaint under Article   3 about his detention conditions, the Court held that there had been a violation of Article 13.   Articles 6 § 1 and 13   In the light of its other findings, the Court did not consider it necessary to deal with the applicant’s other complaints under Articles 6 and 13.     ***   The Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Registry of the European Court of Human Rights F – 67075 Strasbourg Cedex Press contacts:   Roderick Liddell (telephone: +00 33 (0)3 88 41 24 92)   Emma Hellyer (telephone: +00 33 (0)3 90 21 42 15)   Stéphanie Klein (telephone: +00 33 (0)3 88 41 21 54)   Beverley Jacobs (telephone: +00 33 (0)3 90 21 54 21) Fax: +00 33 (0)3 88 41 27 91   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. Since 1 November 1998 it has sat as a full-time Court composed of an equal number of judges to that of the States party to the Convention. The Court examines the admissibility and merits of applications submitted to it. It sits in Chambers of 7 judges or, in exceptional cases, as a Grand Chamber of 17 judges. The Committee of Ministers of the Council of Europe supervises the execution of the Court’s judgments. [1] Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer. [2] This summary by the Registry does not bind the Court.